People v. Rodriguez CA2/6

DISCUSSION

Appellant argues “the court ignored its responsibility to apply changes to . . . section 1170 governing the imposition of the upper term . . . .” Given section 1172.75, subdivision (d)(4) (§ 1172.75(d)(4)) creates an applicable exception to section 1170, subdivision (b)(2)’s factfinding requirement, we disagree. This appeal raises questions of law we review de novo. (Cf. People v. Allen (2023) 96 Cal.App.5th 573, 578.) Section 1170, subdivision (b)(2) (§ 1170(b)(2)) provides that courts may exceed the middle term “only when there are circumstances in aggravation of the crime that justify [it] and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.” (§ 1170(b)(2).) With exceptions not relevant here, section 1172.75 retroactively invalidates the prison prior enhancement (§ 667.5, subd. (b)) and provides for the recall and resentencing of defendants whose judgment includes that enhancement. (§ 1172.75, subds. (a), (c).) At resentencing, the court “shall apply the sentencing rules of the Judicial Council and apply any other changes in law…